15 Or. 313 | Or. | 1887
Lead Opinion
The respondent commenced an action in-said Circuit Court against the appellant to recover damages for injury to certain personal property. He alleged in his complaint that on the 13th day of October, 1884, he was traveling through said county, transporting a quantity of household goods, and stock, cattle, and horses, and that while his team of four horses and a wagon, with a load of household goods, merchandise, and library, were being driven over and across the county bridge, over Butter Creek, in said county, at the “ Ewing place,” and the respondent was unaware of the bridge being defective or unsafe, and without fault or negligence on his part, it broke and fell, precipitating the team of horses and wagon, and load of goods, merchandise, and library, into said creek; that two of
The respondent’s counsel filed a motion for a change of the place of trial, upon the grounds that the inhabitants of the
The appellant’s counsel further requested the court to instruct the jury that if they found, either that tbe plaintiff was warned of the fact that the bridge was unsafe before the team that was injured was driven upon it, and being so warned, directed and ordered the teams to be driven upon it, or that Sherman Ford, the driver of the team which was injured, knew that the bridge was unsafe before he drove upon it, whether he communicated such knowledge to the plaintiff or not, and at the same time that the bridge might readily have been avoided, they must, in either of such cases, return a verdict for the defendant, which instruction the court refused. Upon what ground the instruction was refused does not appear. The evidence in the bill of exceptions, tending to explain the exception to the refusal of the court to give the instruction, consists, as we understand, of the testimony of Mr. Pennington as to what the said Sherman Ford told him regarding the accident, and circumstances under which it occurred. Sherman Ford was examined concerning the matter as a witness in the case, and denied emphatically that he warned his father, the respondent, as to the bridge being unsafe, or of the latter’s directing or ordering him to drive upon it, or that he knew that the bridge was unsafe at the time he drove the team that was injured upon it. Mr. Pennington, however, testified that said Sherman told him, at the time referred to, an entirely different story, but still, did that establish the fact, or have any other effect'than to impeach Sherman Ford? If the conclusion indicated is correct, and we think it must be, there was no testimony in the case entitling the appellant to ask for said instruction.
The instruction given by the court in regard to the measure of damages, we think was substantially correct. The question on that point merely involved the loss sustained by the respondent as the direct and proximate cause of the appellant’s neglect.
It follows from the views herein expressed that the judgment appealed from must be affirmed, and it is so ordered.
Rehearing
Petition for a rehearing.
This court held, in this case, that in a trial of a civil action against a county for damages to an individual occasioned by an alleged neglect upon the part of the county, a tax-payer of the county was not qualified to sit as a juror, and indicated the opinion that either party to the action had the right to challenge a juror for cause upon that ground, but that where the challenge was interposed upon the part of the county, and overruled by the trial court, and the juror was afterwards challenged peremptorily upon the part of the county, it would be a waiver of the first challenge.
The counsel for the appellant have filed a petition for a rehearing, and in support thereof have cited a number of authorities, in which it has been held that a peremptory challenge made after a challenge for cause had been overruled by the trial court was not such waiver, where it was shown by the record that the party had exhausted his peremptory challenges before the panel was completed; which fact, they claim, is shown by the record in this case. ¥e have inspected the record, and find that, upon the trial of the cause in the court below, the respond
The further test of the error having been prejudicial to him, required in the Nevada case, referred to above, seems to be reasonable. The court there held, that if a juror is challenged for cause, that challenge is overruled, and he is then challenged peremptorily. There does not necessarily arise any inference that the challenging party is thereby injured; and that is in harmony with all the other decisions cited. When, then, will it be inferred that he has been injured? Will it be when he has made all his peremptory challenges, or when he has been compelled to accept of an obnoxious juror in consequence of his having been compelled to exhaust them? The record in this case fails to show the existence of the latter alternative, or that any of the jurors were tax-payers of the county.
There is another feature in this case that, to my mind, has an important bearing. The ground of the appellant’s challenge for cause was for a particular disqualification of the juror. It was not because he Avas prejudiced or biased against the appellant, but because he had an interest in the event of the action, Avhich, under the wording of the statute, rendered him incompetent to sit. That interest, however, was of such a character as to incline the juror to favor the appellant, and the challenge for cause, therefore, was necessarily technical. The appellant was not compelled to resort to a peremptory challenge in order to exclude the juror for grounds for which he had been challenged for cause. There must have been an entire different reason from that for excluding him. His being a tax-payer of the county interested him in deciding in its favor, and the appel
The challenges for cause, under the circumstances, were sought to be used as a kind of expedient — were employed as a sort of substitute for peremptory challenges, when the latter in strictness were the appropriate ones to be employed. The appellant’s counsel will not candidly claim that they desired any of the jurors that were drawn to be excluded simply because they were tax-payers of the county of Umatilla. If the grounds of the challenge for cause had been of such a nature as would have been likely to prejudice the juror against the appellant, and the latter had been put to its peremptory challenge in order to exclude him, there would be more reason for claiming that the error was prejudicial. But under the circumstances, as they exist, no such presumption can be drawn.
The petition for a rehearing will therefore be denied.